Notice: This opinion is subject to formal revision before publication in the Atlanticand Maryland Reporters. Users are requested to notify the Clerk of the Court ofany formal errors so that corrections may be made before the bound volumes goto press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 10-CV-978

KATHERINE T. WALLACE, PH.D., APPELLANT,

v.

ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, APPELLEES.

Appeal from the Superior Court of theDistrict of Columbia

(CAB5606-08)

(Hon. Natalia Combs Greene, Trial Judge)

(Argued April 19, 2011 Decided November 15, 2012)

Katherine T. Wallace, pro se.

John T. May, with whom Dwight D. Murray was on the brief, for appellees.

Before WASHINGTON, Chief Judge, and WAGNER and REID, Senior Judges.*

WAGNER, Senior Judge: Appellant, Katherine T. Wallace, Ph.D., appeals from

the grant of summary judgment in favor of her former employer, appellees Eckert,

Seamans, Cherin & Mellott, LLC (“Eckert Seamans,” “employer” or “firm”), on her

Judge Reid was an Associate Judge, Retired, at the time of argument. Her*

status changed to Senior Judge on December 12, 2011.

2

complaint for wrongful discharge. In her complaint, appellant alleged that Eckert

Seamans wrongfully discharged her: (1) because of her refusal to violate the law and

Rule 1.1 of the District of Columbia Rules of Professional Conduct; (2) in breach of

express and implied promises of employment; and (3) for unlawful discriminatory

reasons based on race, age, disability and gender. The trial court concluded that no

genuine issues of material facts were in dispute and that Eckert Seamans was entitled

to judgment as a matter of law. In addition to seeking reversal of summary judgment,

Dr. Wallace challenges on appeal the trial court’s order declining to compel

production of certain documents withheld by Eckert Seamans on the grounds of

attorney-client and work product privileges. We affirm the trial court’s decision.

I.

The facts underlying this case may be summarized briefly as follows. On July

30, 2007, Eckert Seamans hired Dr. Wallace, an African-American, as a project

attorney to work in its Washington, D.C. office reviewing and translating documents

written in German and other foreign languages related to litigation involving one of

3

its clients. Her responsibilities included coding these documents using a computer1

system in order to categorize them for purposes of identification and document

production in certain products liability cases. About one year after she was hired,

Eckert Seamans terminated Dr. Wallace’s employment, asserting that her productivity

level was unacceptably low when compared to that of other attorneys performing

coding work on the project. Eckert Seamans offered Dr. Wallace an opportunity to

retain her position provided she made a commitment to improve her productivity level

consistent with that of her peers. She declined the offer, contending that the

employer’s demand would require her to violate ethical standards of the profession

and the law. Dr. Wallace filed a complaint in Superior Court alleging claims for: (1)

wrongful termination for refusal to violate D.C. Code §§ 22-3211 and -3221; (2)

wrongful termination for refusal to violate Rule 1.1 of the District of Columbia Rules

of Professional Conduct; (3) promissory estoppel; and (4) racial, disability, age, and

sex discrimination in violation of D.C. Code § 2-1402.11 (a). After discovery, Eckert

Seamans moved for, and was granted summary judgment, and this appeal followed.

Dr. Wallace related in her declaration filed in the trial court that she1

graduated cum laude from Georgetown University Law Center and that she holds“Bachelors and Masters degrees from Stanford University in French and GermanLiterature and Languages, and German Studies, respectively.” She also holds aMasters and Ph.D. degrees from Harvard University in Comparative Literature(German, French and Spanish-American). She is fluent in German, French andSpanish with reading and research fluency in Latin, Portuguese and Italian.

4

Additional facts are set forth with the analysis of the arguments to which they relate.

II. Wrongful Discharge Claims

Dr. Wallace argues that the trial court erred in granting Eckert Seamans

summary judgment on her claim that she was wrongfully discharged in violation of

public policy for her refusal to violate the law, D.C. Code §§ 22-3222 (theft) and

-3221 (fraud), and Rule 1.1 of the District of Columbia Rules of Professional Conduct.

She contends that she presented evidence showing a jury triable issue concerning

whether Eckert Seamans fired her solely for the improper reasons she asserts. Eckert

Seamans argues that Dr. Wallace failed to provide evidence supportive of her claim

that her employment required her to violate the law or the Rules of Professional

Conduct. It also challenges the legal viability of her public policy argument based on

the Rules of Professional Conduct. We set forth briefly the legal principles related to

Wallace’s wrongful discharge claims before addressing them.

A. Applicable Legal Principles

“It has long been settled in the District of Columbia that an employer may

5

discharge an at-will employee at any time for any reason, or for no reason at all.”

Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991) (citations omitted).

In Adams, this court recognized “a very narrow exception to the at-will doctrine under

which a discharged at-will employee may sue his or her former employer for wrongful

discharge when the sole reason for the discharge is the employee’s refusal to violate

the law, as expressed in a statute or municipal regulation.” Id. at 34. In Adams, the

former employee, a truck driver, alleged that his former employer fired him solely for

his refusal to drive a truck that did not have an inspection sticker as required by a

municipal regulation. Id. at 34. Subsequently, a majority of the en banc held that

Adams does not preclude the recognition of other public policy exceptions to the at-will

employment doctrine when warranted by the circumstances. Carl v. Children’s Hosp.,

702 A.2d 159, 160 (D.C. 1997) (en banc). In Carl, a majority explained that “the

recognition of any public policy exceptions to the at-will doctrine must be solidly based

on a statute or regulation that reflects the particular public policy to be applied, or (if

appropriate) on a constitutional provision concretely applicable to the defendant’s

conduct.” Id. at 163. The public policy exception upheld in Carl was based on a

statute, D.C. Code § 1-224 (1992). See id., 702 A.2d at 163-64 & n.6 (Terry, J.,2

In Carl, supra, plaintiff, a nurse, alleged that her employer, Children’s2

Hospital, had discharged her for advocating for patients’ rights in testimony before(continued...)

6

concurring).

This court has not decided whether the Rules of Professional Conduct, upon

which Dr. Wallace relies, are the equivalent of a statute or regulation for the purpose

of application of a public policy exception to the at-will employment doctrine. See

Wallace v. Skadden, Arps, Slate Meagher & Flom LLP (Skadden Arps), 715 A.2d 873,

883-84 (D.C. 1998). Although the theory was advanced in Skadden Arps, this court

concluded that the appellant’s claim failed because her complaint revealed that “she

was not terminated solely, or even substantially, for engaging in conduct protected by

such an exception.” Id. at 886. The court also observed that the particular Rules of

Professional Conduct upon which appellant relied in that case had no applicability to

her claim. Id. at 883-84.3

(...continued)2

the Council of the District of Columbia in opposition to tort reform. 702 A.2d at 160. She contended that her discharge was contrary to public policy as expressed in D.C.Code § 1-224 (1992), which makes it a crime to intimidate or impede any witness inany proceeding before the Council. A majority of the en banc court held that hercomplaint for wrongful discharge stated a claim upon which relief could be granted. Id. at 161.

In Skadden Arps, a junior associate in a law firm alleged that she was3

discharged for reporting improprieties of other attorneys to her supervisors. Skadden,Arps, supra, 715 A.2d at 882. She contended that she was required to do so by Rule5.1 (Responsibilities of a partner or supervisory lawyer) and Rule 5.2

(continued...)

7

B. Analysis

Dr. Wallace’s position in the trial court and on appeal is that in order to meet the

employer’s new productivity goals for the review of German language documents, she

would have to perform the work incompletely with the employer’s apparent expectation

that she would bill the client for full performance. Therefore, she contends that the

employer’s productivity requirements were tantamount to instructing her to violate two

criminal statutes, D.C. Code §§ 22-3222 (theft) and -3221 (fraud), and Rule 1.1 of the

District of Columbia Rules of Professional Conduct. Based on these theories, Dr.4

Wallace claimed that Eckert Seamans violated public policy in firing her for her refusal

(...continued)3

(Responsibilities of a subordinate lawyer for compliance with the rules even if asupervising attorney directs otherwise, except for limited exceptions). Id. at 883.Noting that neither rule imposed a duty upon a subordinate attorney to reportanything to her superiors, this court held that the discharged employee could notsustain the complaint on the basis of these rules under Adams. Id. at 884.

D.C. Bar Rule X, § 1.1 provides, in pertinent part:4

(a) A lawyer shall provide competent representation to aclient. Competent representation requires the legalknowledge, skill, thoroughness, and preparation reasonablynecessary for the representation.

(b) A lawyer shall serve a client with skill and carecommensurate with that generally afforded to clients byother lawyers in similar matters.

8

make a commitment to comply with its productivity standards.

In granting summary judgment for Eckert Seamans, the trial court found that

Wallace had failed to produce any evidence supporting her claim that her employer’s

sole reason for firing her was her refusal to violate the law. Assuming without deciding

that a public policy exception could be based on the Rules of Professional Conduct, the

trial court granted summary judgment for Eckert Seamans on this theory because Dr.

Wallace failed to produce evidence showing that her employer’s instructions for

document review required her to violate Rule 1.1. The trial court concluded that

Wallace relied upon conclusory allegations and speculation for her argument, which

are insufficient to defeat a properly supported motion for summary judgement.

Summary judgment will be granted if a party demonstrates that “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Super. Ct. Civ. R. 56 (c); see

Murphy v. Schwankhaus, 924 A.2d 988, 991 (D.C. 2007) (setting forth summary

judgment standard under Super. Ct. Civ. R. 56 (c)). Once the moving party makes the

requisite initial showing, “the burden shifts to the non-moving party to come forward

9

with specific evidence showing, to the contrary, that genuine issues of material fact do

exist.” Id. (citing Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198-99 (D.C.

1991)). We agree with the trial court that Dr. Wallace failed to meet this burden after

Eckert Seamans had made the requisite initial showing.

In support of its motion for summary judgment, Eckert Seamans provided

numerous affidavits and portions of Dr. Wallace’s deposition testimony supporting its

claim that the firm terminated her employment because of her unacceptably low rate

of productivity and her refusal to commit to improving it. According to the undisputed

evidence, Dr. Wallace was one of a number of lawyers hired by Eckert Seamans to

review and code foreign language documents for discovery purposes in certain

products liability cases involving one of its clients. These attorney document reviewers

performed the work through databases accessible by computers that recorded

productivity and coding of each document reviewer while logged on. In about

November 2007 and again in June 2008, team leaders informed all attorney document

reviewers that the pace of review had to be increased. Over a 2 ½ month period, the

entire group of foreign language document attorneys reviewed on average 8.5

documents per hour with some averaging 12 documents per hour. During the same

period, Dr. Wallace reviewed an average of 5 documents per hour. Although the firm

10

set a new review goal of 15 to 20 documents per hour, attorney document reviewers

were informed that this was not intended to be a quota, and they were never told to

sacrifice the quality of their work. Dr. Wallace testified at a deposition that she

understood that this new hourly review target was a goal and that no one in the firm

told her specifically that she should increase her pace of review if it meant performing

substandard work. She also testified that she understood that an e-mail dated June 19,

2008 stating that the German language reviewers were still too slow to mean that they

had to improve the productivity rate. Initially, Dr. Wallace increased her productivity,

tried to be more brief in reviewing unimportant documents and writing explanations

for documents. Dr. Wallace also testified that she never did substandard work, and she

had no knowledge of whether other document reviewers were performing substandard

work.

After reviewing productivity reports, two members of the firm decided to

terminate the two foreign language attorneys with the lowest productivity rates,

namely, Dr. Wallace and Mr. H. Wilfert. Dr. Wallace requested reconsideration, and

Eckert Seamans agreed to rescind the firing decision provided she made a commitment

to maintain a higher level of productivity. However, on July 13, 2008, Dr. Wallace

informed her employer that she was unwilling to comply with the conditions in an e-

11

mail to a member of the firm, Timothy Coon. Eckert Seamans made the same offer to5

the other attorney slated for termination for low productivity, and he agreed to the

condition and was retained.

In her opposition to the motion for summary judgment, Dr. Wallace did not

refute these salient facts. Principally, through her own declaration, she sought to show:

Dr. Wallace sent copies of the e-mail to others in the firm, including Richard5

Dandrea, a firm member, Brian Calla, a special contract associate, and R. Ricci. Inher e-mail, Dr. Wallace explained her position, in pertinent part, as follows:

Since neither you or anyone at your end is competent toevaluate my job performance because I work in German,French, Spanish, Italian and Portuguese, any performancestandards or expectations you set for me will be based inabsolute ignorance. Indeed, since you are inherentlyincompetent to evaluate the substance of my work, itfollows that you are likewise completely incapable ofdetermining what an appropriate pace or productivity levelis for that work. . . . Consequently, committing to meetsuch expectations would put me at odds with my duty tomy client . . . under Rule 1.1 of the District of ColumbiaRules of Professional Conduct. . . .

If your offer of continued employment is contingent on memaking such a commitment, I will be forced to reject it andfile a lawsuit against Eckert Seamans for wrongfuldischarge under the public policy exception to the at-willdoctrine, among other causes.

12

(1) that the work of the foreign language attorneys is complex and varied depending

upon the length and nature of the documents; (2) that the project managers for Eckert

Seamans should have known that compliance with the new productivity goal would

require the reviewers to compromise the quality and completeness of their work in

violation of the law and Rules of Professional Conduct; and (3) that the firm’s

productivity measures are meaningless and arbitrary in that productivity cannot be

measured by counting documents reviewed over a given period of time. Dr. Wallace

offered no admissible evidence that compliance with the employer’s productivity goals

had caused or would require foreign language document reviewers to violate the law

or the Rules of Professional Conduct. Although she claimed that several project

attorneys expressed the view that meeting the document review goals would require

shortcuts, Dr. Wallace provided no affidavits or deposition testimony from these

unidentified individuals or from Thomas Miller, the one person she identified as having

said that he would have to shortchange the client in order to comply. Under Super. Ct.

Civ. R. 56 (e), a party opposing summary judgment must “‘set forth by affidavit or in

similar sworn fashion specific facts showing that there is a genuine issue for trial.’”

Potts v. District of Columbia, 697 A.2d 1249, 1251 (D.C. 1997) (citation and internal

quotation marks omitted). The opposing affidavit must be made on personal

knowledge and set forth facts admissible at trial that show that the affiant is competent

13

to testify about the matters stated in it. Id. (quoting Super. Ct. Civ. R. 56 (e)). Dr.

Wallace’s hearsay declarations as to what others said about the potential impact on

their work of compliance with the new productivity standards is inadmissible hearsay,

which is insufficient to meet the requirement of Rule 56 (e). See id.; see also Jones v.

United States, 17 A.3d 628, 632 (D.C. 2011) (explaining generally the inadmissibility

of hearsay, i.e., “an out-of-court assertion of fact offered into evidence to prove the

truth of the matter asserted.”) (citations omitted).

Dr. Wallace relies on her own declaration for admissible evidence supporting her

claim that disputed issues of material fact remain for trial. Specifically, she refers to

her assertions concerning the nature and complexity of the work, the variation in the

length of documents and time required for review and her conclusion that any

commitment to try to improve her pace of review would require her to breach her

ethical responsibility and ultimately the law. Dr. Wallace contends that a reasonable

jury could find from this evidence that her employer’s instructions for an increased

pace of review necessarily implied an instruction to ignore her professional

responsibilities. There are several flaws in this argument. First, Dr. Wallace’s

statement that the employer’s request for increased productivity was tantamount to an

instruction that she violate the Rules of Professional Responsibility and the law are

14

conclusory assertions. Mere conclusory allegations in response to a properly supported

motion are insufficient to avoid summary judgment. Musa v. Continental Ins. Co., 644

A.2d 999, 1002 (D.C. 1994) (citing Graff v. Malawer, 592 A.2d 1038, 1040 (D.C.

1991)). Dr. Wallace offered no evidence, by affidavit, depositions or otherwise, that

the firm’s more productive employees, as determined by the same standard applied to

Wallace, or those who continued to work under its new productivity goals were

instructed or compelled to violate the law or the Rules of Professional Responsibility.

Although Dr. Wallace states that she informed project managers that accelerating the

pace of the work would require less thorough review, significantly she failed to offer

admissible evidence that any other workers experienced similar difficulties. As the trial

court concluded, Dr. Wallace failed to provide more than conclusory statements that

project managers knew or should have known that the productivity goals were

impossible to meet or that meeting them would or did result in defrauding, stealing or

cheating the firm’s client. All of the evidence cited by Eckert Seamans is to the

contrary. Second, contrary to Dr. Wallace’s argument, the critical omissions in the

evidence required to prove her wrongful discharge claims can not be established by

inferences from the evidence offered. “While the jury may draw reasonable inferences

from the evidence, it may not base its verdict on guess or speculation.” Gebremdhin

v. Avis Rent-A-Car Sys., 689 A.2d 1202, 1204 (D.C. 1997) (citing District of Columbia

15

v. Billingsley, 667 A.2d 837, 842 (D.C. 1995) and Johns v. Cottom, 284 A.2d 50, 53

(D.C. 1971)) (other citation omitted); see also STANDARDIZED CIVIL JURY

INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2-3 (ed. rev. 2002) (permitting

jurors to draw inferences or conclusions from the evidence that reason and common

sense lead them to make). There is no evidence from which a lay juror could infer

reasonably that Wallace’s employer knew or should have known that the only way

foreign language attorneys could perform their work under its new productivity goals

was by violating ethical standards and the law. Dr. Wallace offered no expert opinion

as to the standard required for review of foreign language documents for discovery

purposes in the litigation involved or how the employer’s instructions for review failed

to comport with the Rules of Professional Conduct. She denied performing6

substandard work, although she increased productivity. She failed to provide

admissible evidence that others performed substandard work. Third, Dr. Wallace

admits to the material facts that defeat her wrongful discharge claims. She concedes

that she was offered an opportunity to continue her employment under the same

Eckert Seamans’ evidence showed that Dr. Wallace’s work consisted of6

reviewing documents in German and other foreign languages and coding them usinga certain system so that they could be categorized for identification and productionin products liability cases. Dr. Wallace further described the work as reviewing eachdocument for the names of lawyers, special medical procedures, new productinventions, important persons mentioned in the document, confidential and irrelevantinformation for redaction, and correcting errors made by the “English team.”

16

standard applied to the firm’s other foreign language attorneys and that she refused to

do so. The evidence Dr. Wallace offered failed to support her claim that Eckert

Seamans fired her for any reason in violation of public policy.7

Dr. Wallace argues for the first time on appeal that the trial court erred in

granting Eckert Seamans’ summary judgment motion on the wrongful discharge claims

because the supporting affidavits of the project managers referred to logs, data and

reports. She contends that the affiants’ reliance upon these documents to determine

productivity levels violates the best evidence rule and Super. Ct. Civ. R. 56. This rule

provides that “[w]here the contents of a writing . . . may be at issue, the best evidence

of the writing is the document itself.” Fox v. Ginsburg, 785 A.2d 660, 662 (D.C. 2001)

(citation omitted) (concluding applying the best evidence rule that the authorization

and terms of an order for substituted service could be most reliably confirmed by a

On appeal, Dr. Wallace argues that Eckert Seamans engaged in an “ongoing7

and continuous pattern of legal and ethical violations.” Specifically, she asserts that: (1) a D.C. team leader falsely held herself out as a lawyer and reviewed the work ofattorneys; (2) the firm hired certain attorneys before they became members of theD.C. Bar, who failed to seek admission in the time required by the rule; and (3) shealerted the firm that its intention to delay payment to project attorneys would violatelocal law. However, Dr. Wallace asserted no theory of liability based on theseassertions in her complaint, opposition to motion for summary judgment nor even onappeal. She has failed to show any nexus between these assertions and her causes ofaction and no basis for reversal of the trial court’s judgment by reason of thesealleged facts.

17

copy of the order itself rather than a party’s representation that the order was issued).

Dr. Wallace failed to challenge the sufficiency of the affidavits on the basis of the best

evidence rule. Essentially, she allowed the trial court to consider them, apparently

accepting their accuracy and asserting that the number of documents reviewed was not

a meaningful measure of her productivity. Therefore, the trial court had no occasion

to reject the affidavits as inadmissible evidence under the best evidence rule.

Objections to inadmissible documents must be made timely, or they will be deemed

waived and may be considered by the court. Catrett v. Johns-Manville Sales Corp.,

826 F.2d 33, 38 n.10 (D.C. Cir. 1987). Moreover, Dr. Wallace did not proceed on the

theory that her employer wrongfully concluded that she was one of the two least

productive employees when measured by number of documents reviewed. Therefore,

this was not a material issue of fact in dispute for consideration by the trial court on her

wrongful discharge claims.

III. Discrimination Claims

A. Disability Claim Under the Human Rights Act

Dr. Wallace alleged a claim of discrimination based on disability under the D.C.

18

Human Rights Act, D.C. Code §§ 2-1401.01 et seq. (Human Rights Act or Act). The

basis for this claim was that she had foot surgery on July 2, 2008 which required an

extended recovery period and that she was terminated only eight days after the surgery,

although she had obtained permission to work from home. She alleged that her

discharge was based in whole or in part on her disability in violation of D.C. Code § 2-

1402.11 (a)(1). Concluding that a temporary disability of the kind asserted here is not

one protected under the Human Rights Act, the trial court granted summary judgment

for Eckert Seamans on the disability claim. On appeal, Dr. Wallace argues for reversal,

contending that the protections under the Act are not limited to permanently disabled

individuals and that a contrary reading of the statute defeats its purpose.

The section of the Human Rights Act upon which Dr. Wallace relies prohibits

an employer from discharging an individual, wholly or partially, based on his or her

disability. D.C. Code § 2-1402.11 (a)(1). To establish a prima facie case of disability

discrimination under the Act, a plaintiff must first establish that he or she has a

disability for which reasonable accommodation can be made. Grant v. May Dep’t

Stores Co., 786 A.2d 580, 583 (D.C. 2001) (citation omitted). The Act defines

“disability” as “a physical or mental impairment that substantially limits one or more

of the major life activities of an individual having a record of such an impairment or

19

being regarded as having such an impairment.” D.C. Code § 2-1401.02 (5A) (2001).

In this context, “substantially limits” a major life activity means that the disability

significantly restricts the person’s “‘ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having comparable

training, skills and abilities.’” Grant, 786 A.2d at 584 (quoting Croley v. Republican

Nat’l Comm., 759 A.2d 682, 700 n.17 (quoting 29 C.F.R. § 1630.2(j)(3)(I))). A “major

life activity” includes “functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.” Id. (citation

omitted).

Dr. Wallace argues that her foot surgery limited her ability to walk, drive and

care for herself and perform a broad range of jobs, thereby meeting the statutory

requirements. However, she concedes that her condition was only temporary, and it

was the temporary nature of her condition that resulted in the trial court’s dismissal of

her claim. In reaching its conclusion, the trial court relied on interpretations of similar

provisions of the Americans with Disabilities Act (“ADA”) and EEOC regulations.

This court has considered decisions under the ADA and EEOC guidelines as persuasive

in interpreting comparable provisions of the Human Rights Act. See Grant, supra, 786

A.2d at 583 (citing e.g., Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994); Arthur

20

Young & Co. v. Sutherland, 631 A.2d 354, 367-68 (D.C. 1993); and Lyles v. District

of Columbia Dep’t of Emp’t Servs., 572 A.2d 81, 82-83 (D.C. 1990)).

The definition of disability under the ADA is virtually identical to the definition

of the term under the Human Rights Act. In Grant, we recognized specifically that the8

“definition” of disability in the Human Rights Act is substantially similar to that found

in the ADA and EEOC regulations. Id. at 583. Under the ADA, as interpreted by9

EEOC regulations, “temporary, non-chronic impairments of short duration, with little

Disability under the Human Rights is defined as8

a physical or mental impairment that substantially limitsone or more of the major life activities of an individualhaving a record of such an impairment or being regarded ashaving such an impairment.

D.C. Code § 2-1401.02 (5A). The definition of disability in the ADA is as follows:

(A) a physical or mental impairment that substantiallylimits one or more of the major life activities of suchindividual;(B) a record of such an impairment; (C) or being regarded as having such an impairment.

42 U.S.C. § 12102(1).

The EEOC is responsible for enforcement of Title I of the ADA, 42 U.S.C.9

§ 12101 et seq. (1990), which prohibits employment discrimination on the basis ofdisability.

21

or no long term or permanent impact, are usually not disabilities. Such impairments

may include . . . broken limbs. . . .” 29 CFR Ch. XIV, Pt. 1630, App. (7-1-10 ed.) 10

Citing this regulation, the Fifth Circuit upheld the grant of summary judgment on a

claim alleging disability discrimination under the ADA based on a temporary and

surgically correctable ankle affliction. Rogers v. Int’l Marine Terminals, Inc., 87 F.3d

755, 761 (5th Cir. 1996). In Rogers, the court concluded that the physical impairments

relied upon were not “either chronic or severe enough to constitute a disability under

the ADA.” Id. at 759. Similarly, Dr. Wallace’s temporary foot impairment, for which

she had surgery and a brief recovery period, does not constitute a disability under the

Human Rights Act, which has the same definition for disability as the ADA.

Apparently recognizing her inability to make the threshold showing of disability

under the interpretation of the term’s meaning under the ADA, Dr. Wallace argues that

this court should not look to the ADA and federal regulations in interpreting the term.

As reasons for this position, she points to two general propositions: (1) this court’s

recognition that the Human Rights Act is a remedial civil rights statute that must be

The Appendix cited represents the EEOC’s interpretation of the issues10

addressed therein and by which it will be guided when resolving charges ofdiscrimination in employment. 29 C.F.R. XIV, Pt. 1630, App. Introd. (7-1-10 ed.).

22

generously construed; and (2) a legislative amendment emphasizing the Human11

Rights Act’s broad scope. In addition, she cites a case in which this court cautioned12

that although cases construing Title VII are generally apt in interpreting the Human

Rights Act, differences in federal and local law must be borne in mind when

interpreting local law. See Esteños v. PAHO/WHO Fed. Credit Union, 952 A.2d 878,

886 (D.C. 2008). Dr. Wallace argues that applying these general propositions,

discrimination based upon a temporary disability is prohibited under the Human Rights

Act. The general propositions that Dr. Wallace quotes do not lead to the result that she

seeks.

See Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724,11

731 (D.C. 2000) (citing Skadden, Arps, supra, 715 A.2d at 889 and Simpson v.District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C. 1991)).

Dr. Wallace cites the District of Columbia Council’s Committee Report on12

Bill 12-34, “The Human Rights Act of 1997,” at 2 (May 29, 1997). The passageupon which she relies states as follows:

The District’s human rights law has long been praisedfor its broad scope. The law bans discrimination inemployment, housing, public accommodations, andeducation. It protects people from discrimination based oncharacteristics covered in federal civil rights law . . . aswell as other characteristics not covered under federal law,such as sexual orientation, marital status, and familyresponsibilities.

23

In Esteños, upon which Dr. Wallace relies, this court held that the Human Rights

Act allows an employee to raise a claim of national origin discrimination based on

evidence of an English proficiency requirement. Esteños, supra, 952 A.2d. at 882. 13

While acknowledging certain differences between Title VII and the Human Rights Act,

the majority ultimately found support for its decision in EEOC regulations,

incorporated into local regulatory law for agencies responsible for implementing the

Human Rights Act, and therefore, owed deference in interpreting it. Id. at 892 (citing

United States Parole Comm’n v. Noble, 693 A.2d 1084, 1096-97 (1997) (en banc)).

One difference mentioned in the opinion and relied upon by Dr. Wallace here is the

Council’s expressed intent “to secure an end in the District of Columbia to

discrimination for any reason other than that of individual merit, including, but not

limited to the enumerated [protected] classes.” Id. at 887 (quoting D.C. Code § 2-

1401.01 (2007 Supp.)). This expressed intention “does not mean, however, that this

court will create new protected classes not identified by the legislature.” Id. (citing

Sorrells v. Garfinckel’s, Brooks Bros., 565 A.2d 285, 289 (D.C. 1989)). Here, the

Judge Schwelb agreed with the majority that the claim was not time barred. 13

Esteños, supra, 952 A.2d at 896 & 896 n.1 (Schwelb, J., concurring in part anddissenting in part). However, Judge Schwelb would have affirmed the trial court’sgrant of summary judgment, concluding that viewing the record in the light mostfavorable to Esteños, no impartial trier of fact could find that he had been firedbecause of his national origin. Id. at 901.

24

protected category, disability, is defined in the Human Rights Act in a way that does

not include every passing physical ailment that an individual might experience. Put

another way, this court cannot read into the statute coverage for insubstantial temporary

conditions that were not intended by the legislature to be covered.

Dr. Wallace has offered no reason to depart from the principle that this court will

follow cases construing Title VII “to the extent that the [A]cts use similar words and

reflect similar purpose.” Id. at 886 (citing Benefits Commc’n Corp. v. Klieforth, 642

A.2d 1299, 1301 (D.C. 1994)) (other citations omitted). The definitions of the term at

issue are virtually identical, and the ADA and the Human Rights Act reflect similar

purposes. Therefore, the trial court properly relied upon federal case law and EEOC

regulations in interpreting the meaning of disability. Under that reasonable

interpretation of the term, Dr. Wallace’s foot surgery, for which she reported a recovery

period of only a few months and the ability to work from home, does not qualify as a

disability under the Human Rights Act. Therefore, we find no error in the trial court’s

ruling dismissing Dr. Wallace’s disability discrimination claim.

25

B. Race, Age and Sex Discrimination Claims

Dr. Wallace also alleged in her complaint that her employer discriminated

against her based upon her “race, color and her status as an African-American,” her age

(over 50 years), and her gender (female) in violation of D.C. Code § 2-1402.11 (a)(1).

In pertinent part, this statute prohibits discrimination in employment based on race,

color, sex, and age. In considering discrimination claims under the Human Rights Act,

this court uses the three-part, burden-shifting test set forth by the Supreme Court for

Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Hollins v. Fed. Nat’l Mortg. Ass’n, 760 A.2d 563, 571 (D.C. 2000) (citations omitted).

This test requires the employee to establish first a prima facie case of discrimination

by a preponderance of the evidence, which if made, raises a rebuttable presumption of

unlawful discrimination. Id. (citing Arthur Young & Co. v. Sutherland, 631 A.2d 354,

361 (D.C. 1993)) (other citation omitted). Second, once this prima facie showing is

made, the burden shifts to the employer to rebut the presumption “by articulating ‘some

legitimate, nondiscriminatory reason for the employment action.’” Id. (quoting Atlantic

Richfield Co. v. District of Columbia Comm’n on Human Rights, 515 A.2d 1095, 1099

(D.C. 1986)). The employer can meet this burden by producing evidence from which

the trier of fact can conclude that its action was not motivated by a discriminatory

26

reason. Id. (citing Atlantic Richfield, 515 A.2d at 1099-1100). Third and finally, the

burden shifts back to the employee to prove by a preponderance of the evidence that

the employer’s stated reason was simply a pretext for an unlawful discriminatory

purpose. Id. (citing Arthur Young, 631 A.2d at 361). The ultimate burden of proving

that the employer discriminated intentionally remains with the employee-plaintiff at all

times. Id. (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

In order to establish a prima facie case of discriminatory discharge under the

Human Rights Act, Dr. Wallace was required to show that: (1) she is a member of a

protected class; (2) she was qualified for the position from which terminated; (3) she

was terminated in spite of her qualifications for the position; and (4) a substantial factor

for the termination was that she is a member of the protected class. Hollins, supra, 760

A.2d at 572 (citing McDonnell Douglas Corp., supra, 411 U.S. at 805 (other citations

omitted)) (setting forth required elements of proof for a claim of discriminatory

discharge based on race under the Human Rights Act). In the trial court, the parties did

not contest the first three elements of Dr. Wallace’s prima facie case. Therefore, like

the trial court in this case, we assume that they were sufficiently established to move

to consideration to the fourth element. See id. at 572. The trial court concluded that

Dr. Wallace failed to establish the fourth required element because she failed to show

27

that she was treated differently than other similarly situated employees .

To sustain the burden on the fourth element, Dr. Wallace was required to “show

that she was treated differently from [an Eckert Seamans] employee, all of whose

relevant employment aspects were ‘nearly identical’ to hers.” Skadden, Arps, supra,

799 A.2d at 386 (citing Hollins, supra, 760 A.2d at 578). We agree with the trial court

that Dr. Wallace failed to make that showing. In support of this element, Dr. Wallace

offered that she was treated less favorably than younger white attorneys who engaged

in misconduct and were less productive. Specifically, she refers to four individuals

who the firm allegedly permitted to work while they were not members of the District

of Columbia Bar, two of whom failed to apply timely for membership consistent with

court rules. What is lacking in her representation is any showing that any of these

employees were retained in spite of shortcomings or transgressions similar to her own

(i.e., failure and refusal to meet or attempt to meet the employer’s performance level

standards). That these employees were not discharged or penalized for reasons

unrelated to the facts surrounding Dr. Wallace’s discharge is not relevant to her claim

of disparate treatment. The evidence shows that all employees in her category were

subject to the same productivity standards. Dr. Wallace does contend that the

productivity level of two of these employees were the subject of the firm’s concern at

28

one point. However, she fails to show that these employees did not meet or work to

comply with the employer’s new productivity goals. Absent such a showing, Dr.

Wallace has failed to meet her burden of showing that she was treated differently than

similarly situated employees. Indeed, the fact that the firm sought to discharge Mr.

Wilfert, a white male, and Dr. Wallace for low productivity levels and offered each of

them continued employment on the same terms, which Dr. Wallace rejected, undercuts

her disparate treatment argument.14

Although the trial court concluded that Dr. Wallace failed to make a prima facie

Dr. Wallace’s deposition testimony reveals a lack of evidence supporting her14

race and age discrimination claims. When asked why she believed that she wasterminated because of her race, Dr. Wallace responded,

[b]ecause I’m black. Because I had excellent reviews . . . I believe I was doing more languages than other people,though being paid the same amount. . . . it would seemirrational to terminate such a person, particularly since Iwas such a good deal. And generally decisions based onrace are irrational economically.

When asked why she believed she was discharged because of her age, Dr. Wallacetestified in pertinent part:

. . . a younger person is probably more amenable to thetypes of instructions that were being given then someonelike myself who had just — it would have just been easier. But that’s a personal impression.

29

case of discrimination, it addressed her claim that the employer’s stated reason for her

discharge was pretextual. Once an employer presents a legitimate, non-discriminatory

reason for terminating an employee, the burden shifts to the employee to show that the

stated reason was a pretext for discrimination. See Hollins, supra, 760 A.2d at 573.

The trial court held that while the employer had produced more than enough evidence

to meet the burden of producing a legitimate explanation, Dr. Wallace failed to produce

sufficient evidence to show a jury triable issue.

The non-discriminatory reason shown by Eckert Seamans for terminating Dr.

Wallace’s employment was that her productivity level was materially lower than that

of her peers who were foreign language document reviewers. In challenging the15

employer’s non-discriminatory reason, Dr. Wallace contends first that the four

affidavits supporting the employer’s non-discriminatory reason rely upon reports, logs

and data which are inadmissible hearsay. We reject this argument essentially for the

reasons stated in Section II. B. First, her objection to the admissibility of this evidence

on hearsay grounds, made for the first time on appeal, is deemed waived. See Catrett,

supra, 826 F.2d at 38 n.10. Second, the reports, logs and data were not hearsay

Details concerning the employer’s reason are set forth in detail in Section15

II. B., supra.

30

because they were not offered for the truth of the matter asserted, but rather to show

that the employer relied upon this material in making the decision about which

employees to terminate. See Hollins, supra, 760 A.2d at 573 (holding that reports

made by outside counsel relied upon in terminating an employee were not hearsay

because not offered for their truth, but to show that the employer relied upon them).

Dr. Wallace also argues that the employer’s productivity measures are

meaningless, arbitrary and false. She contends that the number of documents reviewed

per hour is not an appropriate measure of productivity because documents are of

different lengths and complexity. Dr. Wallace offered no expert evidence in support

of her claim that her employer’s productivity measures are unsuitable for setting

performance goals for contract attorneys performing foreign language document review

or outside of some recognized standard. Such proof is not so obvious as to lie within

the ken of the average lay juror, and therefore, expert testimony is required. See

generally Lasley v. Georgetown Univ., 688 A.2d 1381, 1385 (D.C. 1997). Moreover,

the evidence shows that the employer applied the same productivity standard to Dr.

Wallace’s peers over a two and one-half month period before determining to discharge

the slowest performers. There is no showing that in doing so, the employer relied upon

improper discriminatory reasons. Again, the fact that the employer reconsidered its

31

discharge decision and offered Dr. Wallace continued employment provided she made

a commitment to maintain a higher level of productivity undercuts her claim that the

employer was motivated by other improper reasons. She rejected that offer. 16

Finally, Dr. Wallace argues that she successfully attacked the plausibility of

Eckert Seamans’ explanation of her low productivity with specific evidence that the

firm knew that she was meeting and exceeding all measures of productivity but that it

manipulated the measures in order to discharge her. There is no evidentiary basis for

this claim in the record. Our review of the record shows that the trial court properly17

granted summary judgment on Dr. Wallace’s age, gender and race discrimination

claims.

See supra note 5.16

Dr. Wallace’s reliance on the Supreme Court’s decision in Reeves v.17

Sanderson Plumbing Prods., 530 U.S. 133 (2000) is misplaced. In Reeves, theemployer discharged the employee, citing numerous timekeeping errors. In his agediscrimination suit, the employee “made a substantial showing that [the employer’sexplanation] was false,” offering evidence that he maintained the time recordsproperly and that the automated time clock often failed to scan timecards so that notime of arrival was recorded. Id. at 143. Here, Dr. Wallace has not providedadmissible evidence that her productivity level was up to the level of her peersduring the test period nor that the employer manipulated the results of its productivitymeasures.

32

IV.

Appellant’s remaining arguments can be disposed of briefly.

A. Promissory Estoppel - In Count III of her complaint, Dr. Wallace alleged a

claim for damages based on promissory estoppel. Specifically, she alleged that Eckert

Seamans promised her that she could work from home for two weeks following foot

surgery. Further, she alleged that without that promise, which she contends implied a

promise of continued employment after working at home, she would not have

undergone the surgery and associated expenses at that time. Liability on the theory of

promissory estoppel requires “evidence of a promise, the promise must reasonably

induce reliance upon it, and the promise must be relied upon to the detriment of the

promisee.” Simard v. Resolution Trust Corp., 639 A.2d 540, 552 (D.C. 1994) (citations

omitted). There is no dispute that the employer promised Dr. Wallace that she could

work from home for two weeks after her surgery. However, there is no evidence that

the employer promised her that she could not be discharged from her employment

during this period. Her deposition testimony supports the contrary. Further, Dr.

Wallace admitted at deposition that she scheduled her foot surgery before becoming

aware that she would be permitted to work from home. Thus, the element of reliance

33

is dispelled. There is no evidence that there was any promise to change the at-will

status of Dr. Wallace’s employment or to waive satisfactory performance during this

period. Therefore, we find no error in the trial court’s grant of summary judgment to

Eckert Seamans on this claim.

B. Discovery Issue - Dr. Wallace argues that the trial court erred in denying, in

part, her motion to compel production of certain documents on the ground of Eckert

Seamans’ assertion of a work product privilege. Specifically, she refers to (1)

documents she contends were produced subsequently to parties opposing Eckert

Seamans’ client in products liability litigation, and (2) communications between her

and the firm’s staff regarding her project attorney duties. She argues that documents

prepared in anticipation of previous litigation are not covered by work product

privilege and that the attorney-client privilege, Rule 1.6 of the District of Columbia

Rules of Professional Conduct, cannot be used to prevent discovery. 18

Rule 1.6 of the District of Columbia Rules of Professional Conduct,18

provides, in pertinent part, as follows:

(a) Except when permitted under paragraph (c), (d), or (e),a lawyer shall not knowingly(1) reveal a confidence or secret of the lawyer’s client;(2) use a confidence or secret of the lawyer’s client to thedisadvantage of the client;

(continued...)

34

The Supreme Court has held that the literal language of Rule 26 (b)(3) of the

Federal Rules of Civil Procedure, which protects an attorney’s mental impressions,

opinions and theories, “protects materials prepared for any litigation or trial as long as

they were prepared by or for a party to the subsequent litigation.” Fed. Trade19

Comm’n v. Grolier, Inc., 462 U.S. 19, 25 (1983). To attach the temporal limitation to

the rule as Dr. Wallace suggests is inconsistent with this precedent and with language

of the rule and D.C. Bar Rule X, § 1.6. That Dr. Wallace herself participated in the

preparation of some of these documents is irrelevant to Eckert Seamans’ assertion of

privileges. She is no longer an attorney for the client, and therefore, does not come

within the scope of the attorney-client relationship.

This court reviews the trial court’s decision on discovery issues for an abuse of

discretion. Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 809 (D.C.

2003). The trial court has broad discretion in whether to grant a motion to compel

(...continued)18

(3) use a confidence or secret of the lawyer’s client for theadvantage of the lawyer or of a third person.

D.C. Bar R. X, § 1.6 (a).

Super. Ct. Civ. R. 26 (b)(3) is virtually identical to the federal rule;19

therefore, we consider persuasive authorities interpreting the federal rule.

35

discovery. Id. Eckert Seamans produced a detailed privilege log in which they

identified the documents withheld and the reasons for assertion of the privilege. The

trial court found that Dr. Wallace “has failed to establish, as to any particular

document, either that the defendants’ assertion of privilege is unjustified or that the

privilege [Eckert Seamans] . . . asserted should be overcome.” On appeal, she has not

done so with respect to any specific request. We find no abuse of discretion in the trial

court’s ruling. 20

C. Law of the Case Argument - Dr. Wallace argues that the trial court was

prohibited by the law of the case doctrine from allowing Eckert Seamans to file its

motion for summary judgment. Judge Kravitz, who was assigned to the case before it

was reassigned to the Civil I calendar, denied Eckert Seamans’ motion for leave to file

a motion for summary judgment and motion for reconsideration. Subsequently, the

Presiding Judge of the Civil Division entered an order designating the case as a Civil

I case, assigned it to Judge Natalia Combs Greene, ordered that orders previously

The trial court denied the motion to compel production of document requests20

numbered 3, 4, 5, 6, 8 and 9. Requests 3, 4, and 5 were documents prepared, edited,reviewed and coded by Dr. Wallace while working for the firm. Request 6 related todocuments in Dr. Wallace’s computer files at the firm. Request 8 related to manuals,guidelines or instructions, and Request 9 related to correspondence with any of theforeign language attorneys. Eckert Seamans asserted both the attorney-clientprivilege and work product privilege as to each of these requests.

36

issued remain in force until amended or vacated by Judge Combs Greene, and required

the parties to file a Status Report. In its Status Report and at a subsequent Status

Conference, Eckert Seamans, suggested that, in keeping with Super. Ct. Civ. R. 16’s

purpose of narrowing the issues and conducting an orderly trial, the trial court should

revisit the prior decision not to consider Eckert Seamans’ motion for summary

judgment. The trial court granted the request.

“The ‘law of the case doctrine’ bars a trial court from reconsidering the same

question of law that was presented to and decided by another court of coordinate

jurisdiction when (1) the motion under consideration is substantially similar to the one

already raised before, and considered by, the first court; (2) the first court’s ruling is

‘sufficiently final’ and (3) the prior ruling is not ‘clearly erroneous in light of newly

presented facts or a change in substantive law.” Tompkins v. Washington Hosp. Ctr.,

433 A.2d 1093, 1098 (D.C. 1981) (citations omitted). Here, the record shows that the

prior ruling denying Eckert Seamans leave to file the motion was based on its

untimeliness, not the merits of the motion. Indeed, the timelines for this case changed

once it was assigned to the Civil I calendar and new deadlines were set by the assigned

judge. The prior order did not have the type of finality to which the law of the case

doctrine applies. Therefore, we find no error in the trial court’s ruling allowing the

37

filing of the motion for summary judgment.

For the foregoing reasons, the judgment of the trial court hereby is affirmed.

So ordered.